Dismissed for alleged inappropriate touching: employer's decision upheld despite undisclosed autism
A former employee who was dismissed for gross misconduct after two colleagues alleged inappropriate touching has lost his unfair dismissal claim. The tribunal found the employer's decision was within the range of reasonable responses, and the claimant's late disclosure of his autism did not make the dismissal unfair.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was dismissed for gross misconduct after two female colleagues alleged inappropriate touching.
- The claimant denied the allegations and argued the employer had prejudged him.
- The claimant did not disclose his autism to the employer until the appeal stage.
- The tribunal found the employer's decision to dismiss was within the range of reasonable responses.
- The claimant withdrew his holiday pay claim at the start of the hearing.
- The respondent's application for costs was dismissed.
Timeline
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Costs warning letter sent
The respondent sent a letter warning the claimant that his claim had no reasonable prospect of success and that costs would be sought.
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Substantive hearing day 1
The tribunal heard evidence and submissions on the unfair dismissal and holiday pay claims.
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Substantive hearing day 2 and judgment
The tribunal concluded the hearing and gave oral judgment dismissing the unfair dismissal claim and noting the withdrawal of the holiday pay claim.
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Costs application filed
The respondent applied for costs, arguing the claimant acted unreasonably in continuing the claim.
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Costs hearing on papers
Employment Judge Mensah considered written submissions and dismissed the costs application.
The legal issue
The tribunal had to decide whether the employer acted reasonably in dismissing the employee for alleged inappropriate touching, applying the 'range of reasonable responses' test. It also considered whether the employee's failure to disclose his autism until the appeal affected the fairness of the process.
The outcome
The tribunal dismissed the unfair dismissal claim, finding that the employer's investigation and decision to dismiss were within the range of reasonable responses. The claimant's late disclosure of his autism did not render the process unfair, as the employer had not been given the opportunity to consider it earlier.
The holiday pay claim was withdrawn at the start of the hearing. The respondent's application for costs was dismissed, as the tribunal found the claimant had not acted unreasonably in bringing or continuing the claim.
Lessons & takeaways
- Disclose any disabilities or conditions to your employer as early as possible, so they can consider reasonable adjustments during disciplinary processes.
- Employers should ensure they conduct a thorough investigation and consider all relevant evidence before deciding to dismiss for misconduct.
- The 'range of reasonable responses' test gives employers a broad discretion; a dismissal will only be unfair if no reasonable employer would have done the same.
- Costs applications are not automatically granted even if the claim fails; the tribunal will consider whether the claimant acted unreasonably.
What this case shows
This case illustrates the limits of unfair dismissal protection when an employee fails to disclose a condition that could affect their behaviour or the employer's response. The former employee, who had not told his employer about his autism until the appeal stage, argued that the employer had prejudged him and that the dismissal was unfair. However, the tribunal found that the employer's investigation and decision were within the range of reasonable responses, given the seriousness of the allegations and the lack of prior disclosure.
What the employer did right
JCB Cabs System conducted an investigation into the allegations of inappropriate touching, which were made by two female colleagues. The employee denied the allegations, but the employer decided to dismiss for gross misconduct. The tribunal accepted that the employer had reasonable grounds for its belief and that the decision was one that a reasonable employer could have made. The late disclosure of autism did not change this, as the employer had not been given the chance to consider it earlier.
Why this matters
This case is a reminder that employees should disclose any medical conditions or disabilities that may affect their conduct or the employer's duty to make adjustments. It also shows that tribunals will not second-guess employers who have carried out a reasonable investigation and reached a decision that falls within the range of reasonable responses. The dismissal of the costs application also highlights that simply losing a claim does not mean the claimant acted unreasonably.
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